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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CHARLES E. DILLON, 

 Plaintiff, 

 vs. Civil Action 2:12-CV-148 

 Judge Marbley 

 Magistrate Judge King 

MICHAEL J. ASTRUE, Commissioner 

of Social Security, 

 Defendant. 

REPORT AND RECOMMENDATION 

I. 

Introduction and Background

 This is an action instituted under the provisions of 42 U.S.C. 

§405(g) for review of a final decision of the Commissioner of Social 

Security denying plaintiff’s application for a period of disability 

and disability insurance benefits. This matter is now before the Court 

on plaintiff’s Statement of Errors, Doc. Nos. 15, 16, and the 

Commissioner’s Memorandum in Opposition, Doc. No. 17. 

 Plaintiff Charles E. Dillon filed his application for benefits 

on October 31, 2008, alleging that he has been disabled since January 

1, 2003, as a result of HIV, a back injury, hepatitis, depression and 

chronic obstructive pulmonary disease (“COPD”). PageID 253, 284. The 

application was denied initially and upon reconsideration, and 

plaintiff requested a de novo hearing before an administrative law 

judge. 

 A video hearing was held on April 21, 2011, at which plaintiff, 

represented by counsel, appeared and testified, as did Barry J. Brown, 

who testified as a vocational expert. In a decision dated May 20, 2011, 

the administrative law judge concluded that plaintiff was not 

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disabled within the meaning of the Social Security Act at any time 

prior to the lapse of his insured status on March 31, 2006. PageID

56-65. That decision became the final decision of the Commissioner 

of Social Security when the Appeals Council declined review on January 

18, 2012. PageID 49-51. 

 Plaintiff was 42 years of age on March 31, 2006 - the date that 

he was last insured for disability insurance purposes. PageID 58, 63. 

He has a tenth grade, “limited” education, PageID 259, and prior 

relevant work experience as a roofer which, as performed by plaintiff, 

required very heavy exertion. PageID 118. 

II. 

The Evidence of Record 

 Plaintiff sustained a work-related injury on January 7, 2003, 

after falling two-and-a-half stories onto his back while working as 

a roofer. 1 X-rays taken at that time revealed no fractures. 

Plaintiff was diagnosed with a cervical and lumbar strain. PageID

343-45. A February 2003 x-ray showed some degenerative changes in 

the lumbar spine with osteophytes at the right and left sides of L2-L3 

and L3-L4. PageID 330. 

 Craig Held, D.C., treated plaintiff for complaints of neck and 

low back pain from August 2003 to December 2004. PageID 1199-1214. 

Plaintiff specifically complained of stiffness and difficulty upon 

excessive standing, walking or bending. Id. Treatment consisted of 

myofascial release of trigger points, electrical stimulation and 

chiropractic manipulation. Id. 

 James Uselman, M.D., a neurosurgeon, first saw plaintiff in 

March 2004. PageID 419, 431-32. A December 2004 CT scan of the lumbar 

 

1 Plaintiff filed a claim with the State of Ohio Bureau of Workers’ Compensation 

in connection with this injury and the workers’ compensation medical records 

relating to this injury, which are included in the administrative record, PageID

1669-2072, are extensive. The Court will refer to only those records relevant to 

both the administrative law judge’s decision and plaintiff’s challenges to that 

decision, and relating to the period from plaintiff’s alleged date of onset, i.e., 

January 7, 2003, to the date upon which plaintiff’s insured status lapsed, i.e., 

March 31, 2006. 

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spine showed minor disc bulging at L1-L2, disc degeneration at L2-L3, 

sclerosis at L3-L4 of the articulating endplate and a diffuse disc 

bulge, a broad-based bulge at L4-L5, and mild a broad-based bulging 

disc at LS-S1. There was no evidence of spinal stenosis or compression 

of exiting nerve root sheaths. PageID 374-76. A CT scan of the cervical 

spine showed a minor bulge at C4-C5, some degenerative spurring at 

C5-C6, and a bulge at C6-C7; there was no significant foraminal 

stenosis or nerve root impingement. PageID 376-77. 

In August 2005, Dr. Uselman performed laminectomies at L3-4, 

L4-5, and L5-S1 with pedicle screw fixation and interbody fusion of 

L4 through S1. PageID 437-43. 

 James H. Smith, M.D., an infectious disease specialist, first 

saw plaintiff, while he was hospitalized in connection with the August 

2005 back surgery, for post-operative complaints of back pain and 

fever. Plaintiff was placed on an aggressive antimicrobial regimen. 

PageID 1099-1101. 

 In follow-up with Dr. Uselman, plaintiff continued to complain 

of pain, although the pain no longer radiated into the leg. PageID

422-23. A December 2005 CT scan of the lumbar spine confirmed a solid 

fusion but also showed L5-S1 broad-based disc protrusion, L4-L5 disc 

protrusion with a moderate degree of facet arthropathy, and L3-L4 disc 

degeneration with a central disc protrusion and a flattened thecal 

sac. PageID 406. 

 In February 2006, plaintiff presented to an emergency room with 

acute lower extremity paralysis. PageID 389-97, 1795-1819. He 

described a sudden onset of numbness and weakness to his lower 

extremities. PageID 390. According to physician notes, there was some 

suspicion of malingering because of inconsistent physical 

examination results. PageID 1816. Plaintiff also admitted to 

drinking 12 beers and using marijuana prior to his arrival. PageID

 

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390. An MRI of the thoracic spine showed no canal or foraminal 

stenosis. PageID 1793. 

 Dr. Smith saw plaintiff again on March 16, 2006, relating to 

plaintiff’s positive HIV and hepatitis C tests. PageID 701. In April 

2006, plaintiff complained of severe pain in all of his joints, which 

made it difficult to get out of bed. Id. Dr. Smith next saw plaintiff 

in June 2006 when plaintiff was hospitalized for persistent nausea, 

vomiting, joint swelling, weight loss with arthralgias, temperature 

and malaise, which had developed over the prior two weeks. See PageID

521. Dr. Smith “initially was concerned that [plaintiff’s symptoms] 

were related to his HIV medications” and not to any organic 

impairment. PageID 1096-98. However, further testing eliminated 

plaintiff’s medications as the cause of his symptoms. According to 

Dr. Smith, it was “unclear what the etiology of all of his discomfort 

is.” Id. Dr. Smith continued plaintiff’s HIV medications and worked 

for better control of plaintiff’s pain. Id., PageID 701. 

In September 2006, plaintiff underwent removal of hardware from 

his back. PageID 433-36. However, plaintiff’s complaints of pain 

persisted. PageID 1735-37. 

 In December 2006, Dr. Smith stated that he was “unable to comment 

on [plaintiff’s] disability regarding the time of his back surgery 

in August 2005" but opined that plaintiff was “completely and totally 

disabled” since at least March 16, 2006. PageID 701. 

 State agency physician Leigh Thomas, M.D., reviewed the file in 

January 2010. PageID 2074-81. According to Dr. Thomas, plaintiff 

could lift and/or carry and push and/or pull up to 20 pounds 

occasionally and ten pounds frequently; he could stand and/or walk 

about six hours in an eight-hour workday and could sit about six hours 

in an eight-hour workday. PageID 2075. Plaintiff could only 

occasionally climb ramps or stairs, stoop, crouch and crawl. PageID

2076. He could never climb ladders, ropes or scaffolds. Id. Dr. 

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Thomas also found that plaintiff’s allegations were partially 

credible. PageID 2079. 

Plaintiff testified at the administrative hearing that he 

suffers from constant back pain which radiate into his legs. PageID

84. Surgery did not alleviate the pain. Id. Plaintiff initially 

testified that the pain interferes with his ability to sleep, id., 

but he later testified that he sleeps 15 or 16 hours per day, PageID

89, with the assistance of prescribed sleep medication. PageID 94. 

He is unable to sit, stand or walk for a prolonged period. Id. He 

can sit for no more than 15-20 minutes and can stand for no more than 

25-30 minutes. PageID 85. He rated his typical pain level at 8 on a 

10-point scale; on a bad day, “there’s no scale” for measuring his 

pain. PageID 97. 

 Plaintiff testified that he contracted HIV during his surgery. 

PageID 86. The condition has made him weaker, and has resulted in 

hospitalizations for pneumonia; he has “been on life support three 

times.” Id. The condition is controlled by medication in that he has 

not been diagnosed with AIDS. PageID 112-13. 

 Plaintiff also testified that he suffers from arthritis in his 

lower back. PageID 87. He has difficulty getting out of bed. 

He also complained of persistent nausea, weakness, vomiting, and 

weight loss, symptoms that have worsened since his August 2005 

surgery. PageID 88-90. 

 Plaintiff also complained of depression, which began three or 

four years prior to the April 2011 administrative hearing, “[r]ight 

after they told me I had HIV.” PageID 90. He began treatment for the 

condition in 2007. PageID 113. He must be reminded to take his 

medication. PageID 91. 

 Plaintiff utilizes an inhaler every 3-4 days for COPD. He 

wheezes constantly. PageID 95. 

 A nurse assists plaintiff in his home, and performs the cooking, 

cleaning, laundry, and care of plaintiff’s dog. PageID 98. He visits 

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his mother, PageID 99, and occasionally socializes with friends. 

PageID 116. 

 The record also documents a history of substance abuse and 

plaintiff acknowledged that he used cocaine as recently as two weeks 

prior the hearing. PageID 109. He controls his use of alcohol and uses 

drugs only when he is “really depressed.” PageID 110. 

III. 

Administrative Decision 

 In his decision, the administrative law judge found that 

plaintiff suffers the severe impairments of degenerative disc disease 

of the cervical and lumbar spine, chronic obstructive pulmonary 

disease, a history of HIV, hepatitis, depression, and a history of 

polysubstance abuse. Id. Plaintiff’s impairments neither meet nor 

equal a listed impairment. Id. The administrative law judge next found 

that, through the date that plaintiff was last insured, he had the 

residual functional capacity to perform a reduced range of light 

exertion: 

The claimant could lift and/or carry and push and/or pull 

a maximum of 20 pounds occasionally and 10 pounds 

frequently; sit for four hours at a time and a total of eight 

hours in an eight hour work day; and walk and/or stand up 

to four hours at a time and a total of six hours in an eight 

hour work day. The claimant was precluded from climbing 

ladders, ropes, or scaffolds; but could perform occasional 

climbing or ramps or stairs; and occasional balancing, 

stooping, kneeling, crouching, or crawling. The claimant 

was further limited to simple, repetitive, unskilled work. 

PageID 60. In making this finding, the administrative law judge gave 

“no weight” to Dr. Smith’s opinion of disability: 

The claimant's infectious disease specialist, James H. 

Smith, M.D., started treating the claimant in August 2005 

when he was treated for a post-operative infection. 

Subsequently he saw him in March 2006 where the doctor 

collected blood for testing. In April 2006, the claimant 

was hospitalized. Dr. Smith indicates the claimant is 

“totally and completely disabled since at least the date 

in March 2006" when he saw the claimant. However, the 

doctor's notes indicate no complications with regard to the 

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claimant’s HIV positive test or identify any specific 

limitations as a result of contracting this disease. 

Whether the claimant is disabled is a finding reserved for 

the Commissioner (20 CFR 404.1527(e), 416.927(e), and 

Social Security Ruling 96-5p). Furthermore, there is no 

treatment record indicating significant impairment or 

limitations identified in Dr. Smith’s record. Therefore, 

his opinion is given no weight. 

PageID 63. Instead, the administrative law judge accorded 

“significant weight” to the opinion of the state agency physician, 

Dr. Thomas. Id. 

The administrative law judge also found that plaintiff’s 

testimony and subjective complaints were not fully credible: 

The claimant’s statements concerning his impairments and 

their impact on his ability to work are not entirely 

credible in light of the medical history, the reports of 

treating and examining practitioners, the degree of 

medical treatment required and the claimant’s own 

description of his activities and lifestyle. 

 

PageID 61. The administrative law judge then devoted more than two 

pages of his decision to an examination of plaintiff’s subjective 

complaints in light of the objective evidence and plaintiff’s own 

testimony. PageID 61-63. 

 Relying on the vocational expert’s testimony, the 

administrative law judge found that, prior to the date that 

plaintiff’s insured status lapsed, his residual functional capacity 

precluded the performance of his past relevant work as a roofer but 

would permit the performance of other work that exists in significant 

numbers in the national economy. PageID 63-64. Accordingly, the 

administrative law judge concluded that plaintiff was not disabled 

within the meaning of the Social Security Act at any time from his 

alleged onset date of January 1, 2003, through March 31, 2006, i.e.,

the date that he was last insured for disability insurance purposes. 

PageID 65. 

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IV.

DISCUSSION

 Pursuant to 42 U.S.C. §405(g), judicial review of the 

Commissioner’s decision is limited to determining whether the 

findings of the administrative law judge are supported by substantial 

evidence and employed the proper legal standards. Richardson v. 

Perales, 402 U.S. 389 (1971). Substantial evidence is more than a 

scintilla of evidence but less than a preponderance; it is such 

relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion. See Buxton v. Halter, 246 F.3d 762, 772 (6th 

Cir. 2001); Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 

535 (6th Cir. 1981). This Court does not try the case de novo, nor 

does it resolve conflicts in the evidence or questions of credibility. 

See Brainard v. Secretary of Health & Human Servs., 889 F.2d 679, 681 

(6th Cir. 1989); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). 

 In determining the existence of substantial evidence, this Court 

must examine the administrative record as a whole. Kirk, 667 F.2d at 

536. If the Commissioner's decision is supported by substantial 

evidence, it must be affirmed even if this Court would decide the 

matter differently, see Kinsella v. Schweiker, 708 F.2d 1058, 1059 

(6th Cir. 1983), and even if substantial evidence also supports the 

opposite conclusion. Longworth v. Comm’r Soc. Sec., 402 F.3d 591, 595 

(6th Cir. 2005). 

 In his Statement of Errors, plaintiff contends that the 

administrative law judge erred in his evaluation of Dr. Smith’s 

opinion of disability. Statement of Errors, PageID 2182. Plaintiff 

also contends that the administrative law judge’s credibility finding 

is not supported by substantial evidence Id., at PageID 2184. 

 As noted supra, the administrative law judge gave “no weight” 

to Dr. Smith’s April 2006 statement that plaintiff is “totally and 

completely disabled since at least” March 16, 2006. PageID 63. See 

PageID 701. This Court concludes that the administrative law judge 

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did not err in this regard. 

To be afforded controlling weight, the opinion of a treating 

physician must be well-supported by medically acceptable clinical and 

laboratory diagnostic techniques, and must not be inconsistent with 

other substantial evidence in the record. Rogers v. Commissioner of 

Social Security, 486 F.3d 234, 242 (6th Cir. 2007); 20 C.F.R. § 

404.1527(d)(2). In weighing the opinion of a treating physician, the 

administrative law judge is required to consider factors such as the 

length, nature and extent of the treatment relationship, the 

frequency of examination, the medical specialty of the treating 

physician, the opinion's supportability by evidence, and its 

consistency with the record as a whole. 20 C.F.R. § 

404.1527(d)(2)-(6); Wilson v. Commissioner of Social Security, 378 

F.3d 541, 544 (6th Cir. 2004). Even where the administrative law 

judge declines to accord controlling weight to the opinion of a 

treating physician, the administrative law judge “must still 

determine how much weight is appropriate. . . .” Blakley v. 

Commissioner of Social Security, 581 F.3d 399, 406 (6th Cir. 2009). 

Moreover, an administrative law judge must provide “good reasons” for 

discounting the opinions of a treating physician, i.e., “reasons that 

are “sufficiently specific to make clear to any subsequent reviewers 

the weight the adjudicator gave to the treating source’s medical 

opinion and the reasons for that weight.” Rogers, at 242, citing Soc. 

Sec. Rul. 96-2p, 1996 WL 374188, at *5. 

 In assigning no weight to Dr. Smith’s December 2006 opinion of 

disability, the administrative law judge cited the conclusory nature 

of the opinion as well as Dr. Smith’s failure to indicate any 

complications regarding plaintiff’s HIV positive status or to 

identify any specific limitations resulting from that status. The 

administrative law judge also noted Dr. Smith’s medical specialty as 

an infectious disease specialist and the fact that his treatment of 

plaintiff began in 2005. PageID 63. “Procedurally, the regulations 

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require no more.” Francis v. Commissioner Social Sec. Admin., 414 Fed. 

Appx. 802, 805, 2011 WL 915719 (6th Cir. March 16, 2011). Moreover, the 

administrative law judge’s evaluation of Dr. Smith’s opinion of disability 

is supported by substantial evidence in the record. Plaintiff’s first 

challenge to the decision of the administrative law judge is without merit.

 Plaintiff also challenges the administrative law judge’s 

credibility determination. As noted supra, the administrative law 

judge found that plaintiff’s statements concerning his impairments 

and their impact on his ability to work “are not entirely credible 

in light of the medical history, the reports of treating and examining 

practitioners, the degree of medical treatment required and the 

claimant’s own description of his activities and lifestyle.” PageID

61. In evaluating a claimant’s subjective complaints, an evaluator 

must look to the record to determine whether there is objective 

medical evidence of an underlying medical condition. Stanley v. Sec’ 

of Health & Human Servs., 39 F.3d 115, 117 (6th Cir. 1994). If so, 

the evaluator must then determine (1) whether objective medical 

evidence confirms the severity of the complaint arising from the 

condition; or (2) whether the objectively established medical 

condition is of such severity that it can reasonably be expected to 

produce the alleged complaint. Id. (quoting Duncan v. Sec’y of Health 

& Human Servs., 801 F.2d 847, 853 (6th Cir. 1986). 

The administrative law judge’s credibility determination is 

accorded great weight and deference. Buxton v. Halter, 246 F.3d 762, 

773 (6th Cir. 2001) (citing Gaffney v. Bowen, 825 F.2d 98, 973 (6th 

Cir. 1987)). However, credibility determinations must be clearly 

explained. See Auer v. Sec’y of Health & Human Servs., 830 F.2d 594, 

595 (6th Cir. 1987). If the administrative law judge's credibility 

determinations are explained and enjoy substantial support in the 

record, a court is without authority to revisit those determinations. 

See Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994); Beavers v. 

Sec’y of Health, Educ. and Welfare, 577 F.2d 383, 386–87 (6th Cir. 

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1978). 

In the case presently before the Court, the administrative law 

judge provided an exhaustive examination of plaintiff’s subjective 

complaints in light of the objective evidence. PageID 61-63. He 

noted the limited treatment for plaintiff’s cervical spine issues 

prior to the lapse of his insured status and the fact that some of 

plaintiff’s complaints were alleviated following the August 2005 

lumbar laminectomies. PageID 61. He also noted the suspicion of 

malingering associated with plaintiff’s February 2006 

hospitalization. See PageID 1816. Also mentioned by the 

administrative law judge in considering plaintiff’s credibility were 

inconsistencies in the record regarding plaintiff’s alcohol abuse and 

continued smoking in light of his diagnosed COPD. PageID 62. 

In short, the administrative law judge applied the appropriate 

standards and his credibility findings enjoy substantial support in 

the record. Under these circumstances, the Court has no authority 

to revisit those findings. 

It is therefore RECOMMENDED that the decision of the 

Commissioner of Social Security be affirmed and that this action be 

dismissed. 

 If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation, 

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to objections must 

be filed within fourteen (14) days after being served with a copy 

thereof. F.R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right 

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to de novo review by the District Judge and of the right to appeal 

the decision of the District Court adopting the Report and 

Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. 

Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370 (6th 

Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

Date: February 6, 2013 s/Norah McCann King 

Norah McCann King 

 United States Magistrate Judge

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